Bill Text: CA AB1799 | 2015-2016 | Regular Session | Amended
Bill Title: Common interest developments: association governance: elections.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Failed) 2016-11-30 - From Senate committee without further action. [AB1799 Detail]
Download: California-2015-AB1799-Amended.html
BILL NUMBER: AB 1799 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 6, 2016
AMENDED IN ASSEMBLY MAY 3, 2016
AMENDED IN ASSEMBLY APRIL 4, 2016
INTRODUCED BY Assembly Member Mayes
( Coauthors: Senators Bates
and Huff )
FEBRUARY 8, 2016
An act to amend Sections 5100, 5105, and 5145 of the Civil Code,
relating to common interest developments.
LEGISLATIVE COUNSEL'S DIGEST
AB 1799, as amended, Mayes. Common interest developments:
association governance: elections.
The Davis-Stirling Common Interest Development Act defines and
regulates common interest developments that are not a commercial or
industrial common interest development. The act requires a common
interest development to be managed by an association, requires the
association to select one or 3 independent 3rd parties as an
inspector or inspectors of elections, and generally requires the
association's elections regarding assessments legally requiring a
vote, the election and removal of directors, amendments to the
governing documents, or the grant of exclusive use of common area, to
be conducted by the inspector or inspectors of elections in
accordance with specified rules and procedures. The act excepts from
these election requirements an election of directors if the governing
documents of the association provide that one member from each
separate interest is a director.
This bill would additionally except from those election
requirements an election of directors if the election is uncontested,
as defined, and would provide a procedure for an election to be
declared as uncontested. The bill adds 2 additional election
requirements that would ensure an announcement of an election and
notification of nomination procedures is provided in a specific
manner and would ensure a member in good standing
who meets specified qualification requirements is not
denied the right to vote or the right to be a candidate for director.
The bill would authorize a cause of action alleging a violation of
these and other specified election requirements to be brought in
small claims court if the amount of the demand does not exceed the
jurisdiction of that court.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5100 of the Civil Code is amended to read:
5100. (a) Notwithstanding any other law or provision of the
governing documents, elections regarding assessments legally
requiring a vote, the election and removal of directors, amendments
to the governing documents, or the grant of exclusive use of common
area pursuant to Section 4600 shall be held by secret ballot in
accordance with the procedures set forth in this article.
(b) This article also governs an election on any topic that is
expressly identified in the operating rules as being governed by this
article.
(c) The provisions of this article apply to both incorporated and
unincorporated associations, notwithstanding any contrary provision
of the governing documents.
(d) The procedures set forth in this article shall apply to votes
cast directly by the membership, but do not apply to votes cast by
delegates or other elected representatives.
(e) In the event of a conflict between this article and the
provisions of the Nonprofit Mutual Benefit Corporation Law (Part 3
(commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code) relating to elections, the provisions of this
article shall prevail.
(f) Directors shall not be required to be elected pursuant to this
article if the governing documents provide that one member from each
separate interest is a director, or if the election of directors is
uncontested. For purposes of this subdivision, an election of
directors is uncontested if the number of candidates for election,
including write-in candidates, if applicable, does not exceed the
number of directors to be elected at that election and the
association has declared the election is uncontested.
(1) An association may declare an election of directors is
uncontested only if all of the following procedures have been
satisfied:
(A) The election rules required by Section 5105 have been adopted
and complied with for the election.
(B) All declared candidates were nominated before the deadline for
nominations and in accordance with all lawful provisions of the
association's governing documents.
(C) The inspector of elections has informed the board that the
number of candidates does not exceed the number of directors to be
elected at that election.
(D) The board votes in open session to declare the election is
uncontested after a hearing during an open board meeting where
members are able to make objections to the board making that
declaration.
(E) At least 20 days before the board meeting for the vote to
declare the election is uncontested, the association provides general
notice to all members as set forth in Section 4045 of all of the
following:
(i) The intention of the board to vote at a regular board meeting
to declare the election of directors is uncontested, and giving date,
time, and place of that board meeting.
(ii) A disclosure to members of the names of all candidates,
however nominated, including self-nomination, who will be declared
elected if the board declares the election is uncontested.
(iii) The right of any member to appear at the board meeting and
make an objection to the board declaring the election is uncontested
before the board votes on the matter.
(F) The names of all candidates, however nominated, the general
notice required by subparagraph (E), any objection to the board
making the declaration that the election of directors is uncontested,
and the board vote declaring the election of directors is
uncontested shall be recorded in the meeting minutes.
(2) (A) If the association's governing documents provide for
write-in votes on the ballot, the association shall allow 15 days
after the board meeting described in subparagraph (D) of paragraph
(1) for a write-in candidate to submit his or her name to the
inspector of elections. In the event one or more write-in candidates
are timely submitted and additional candidates result in the total
number of candidates exceeding the number of directors to be elected
at that election, an election shall be held pursuant to general
election rules as provided in this article. If after the 15-day
period the total number of candidates, including the number of
write-in candidates, does not exceed the number of directors to be
elected at that election, the uncontested election results shall be
sealed and become effective immediately, with any write-in candidates
added as members. The new board shall take office immediately
following the sealing of the election.
(B) If an association's governing documents do not provide for
write-in votes on the ballot, as provided by subparagraph (A), then
the association must provide at least 15 days' general notice of a
self-nomination process following the board determination described
in subparagraph (D) of paragraph (1).
SEC. 2. Section 5105 of the Civil Code is amended to read:
5105. (a) An association shall adopt rules, in accordance with
the procedures prescribed by Article 5 (commencing with Section 4340)
of Chapter 3, that do all of the following:
(1) Ensure that if any candidate or member advocating a point of
view is provided access to association media, newsletters, or
Internet Web sites during a campaign, for purposes that are
reasonably related to that election, equal access shall be provided
to all candidates and members advocating a point of view, including
those not endorsed by the board, for purposes that are reasonably
related to the election. The association shall not edit or redact any
content from these communications, but may include a statement
specifying that the candidate or member, and not the association, is
responsible for that content.
(2) Ensure access to the common area meeting space, if any exists,
during a campaign, at no cost, to all candidates, including those
who are not incumbents, and to all members advocating a point of
view, including those not endorsed by the board, for purposes
reasonably related to the election.
(3) Specify the qualifications for candidates for the board and
any other elected position, and procedures for the nomination of
candidates, consistent with the governing documents. A nomination or
election procedure shall not be deemed reasonable if it disallows any
member from nominating himself or herself for election to the board.
(4) Specify the qualifications for voting, the voting power of
each membership, the authenticity, validity, and effect of proxies,
and the voting period for elections, including the times at which
polls will open and close, consistent with the governing documents.
(5) Specify a method of selecting one or three independent third
parties as inspector or inspectors of elections utilizing one of the
following methods:
(A) Appointment of the inspector or inspectors by the board.
(B) Election of the inspector or inspectors by the members of the
association.
(C) Any other method for selecting the inspector or inspectors.
(6) Allow the inspector or inspectors to appoint and oversee
additional persons to verify signatures and to count and tabulate
votes as the inspector or inspectors deem appropriate, provided that
the persons are independent third parties.
(7) Ensure that an announcement of an election and notification of
nomination procedures, including self-nomination, shall be provided
to all members by general notice as set forth in Section 4045 at
least 60 days before any election for directors.
(8) Ensure a member in good standing, who
satisfies any the lawful
requirements specified qualifications adopted pursuant
to paragraph (3) and by the association's governing documents,
shall not be denied the right to vote or the right to
be a candidate for director.
(9) Ensure a member who satisfies the lawful qualifications
adopted pursuant to paragraph (4) and by the association's governing
documents shall not be denied the right to vote.
(b) Notwithstanding any other law, the rules adopted pursuant to
this section may provide for the nomination of candidates from the
floor of membership meetings or nomination by any other manner. Those
rules may permit write-in candidates for ballots.
SEC. 3. Section 5145 of the Civil Code is amended to read:
5145. (a) A member of an association may bring a civil action for
declaratory or equitable relief for a violation of this article by
the association, including, but not limited to, injunctive relief,
restitution, or a combination thereof, within one year of the date
the cause of action accrues. Upon a finding that the election
procedures of this article, or the adoption of and adherence to rules
provided by Article 5 (commencing with Section 4340) of Chapter 3,
were not followed, a court may void any results of the election.
(b) A member who prevails in a civil action to enforce the member'
s rights pursuant to this article shall be entitled to reasonable
attorney's fees and court costs, and the court may impose a civil
penalty of up to five hundred dollars ($500) for each violation,
except that each identical violation shall be subject to only one
penalty if the violation affects each member of the association
equally. A prevailing association shall not recover any costs, unless
the court finds the action to be frivolous, unreasonable, or without
foundation.
(c) A cause of action under Sections 5100 to 5130, inclusive, with
respect to access to association resources by a candidate or member
advocating a point of view, the receipt of a ballot by a member, the
counting, tabulation, or reporting of, or access to, ballots for
inspection and review after tabulation, or a violation of a rule
required by Section 5105 may be brought in small claims court if the
amount of the demand does not exceed the jurisdiction of that court.
